O'Brien v Northern Beaches Council [2026] NSWIRComm 1030

1. Mr O'Brien applied for the position of "Property Officer - Land Dealings" via the Council's webpages. Mr O'Brien received an offer of employment for that position from the Council on 19 December 2025.
2. Mr O'Brien accepted the offer electronically on 20 December 2025, with a start date of 12 January 2026.
3. One term of the offer was:

"Probation: Your appointment is subject to the successful completion of a 3 month probation period. ..."

1. Mr O'Brien started work on Tuesday, 13 January 2026. As a part-time employee, his workdays did not include Monday.
2. On commencing, it is common ground that the HR set up for his position, and the automatically generated email signature block for his position were incorrect. The potential relevance of this is addressed below.
3. On 4 February 2026 the Council, through Stephen Venter, apparently Mr O'Brien's "two-up" manager, interrupted Mr O'Brien's workday, asking him to attend a meeting. At that meeting Campbell Pfeffier, Council's Director Transport and Assets, told Mr O'Brien that the Council was dismissing him during the probation period.
4. The termination letter provided to Mr O'Brien at the meeting set out:

"I refer to your position of Finance Officer - Property with Northern Beaches Council and your current probation period.

Council have decided to terminate your employment contract effective the date of this letter, being 4 February 2026.

As per the Local Government (State) Award 2020, you will be paid two weeks in lieu of notice as well as any outstanding annual leave and long service leave."

1. Section 83 of the IR Act sets out employees to whom Part 6 applies and sets out certain exceptions. One of the exceptions is employees who are exempted by regulations which can be made under the IR Act.
2. A class of persons for whom such a regulation may be made includes s83(2)(b), bring "employees serving a period of probation ...". Regulation 6(1)(c) of the Industrial Relations (General) Regulation 2020 sets out the terms of that exception
3. Employees are excluded from the Commission's jurisdiction by reg 6(1)(c) if they satisfy three criteria. These criteria, as relevant to this application are that:

(1) Mr O'Brien was "serving a period of probation";

(2) the period of probation was "determined in advance"; and

(3) the period was no more than three months.

1. Mr O'Brien commenced employment on either 12 or 13 January 2026. Mr O'Brien's employment was terminated on 4 February 2026, with payment in lieu of notice. There is, therefore, no factual basis on which his employment continued past 4 February 2026.
2. This is a period of less than one month, regardless of whether 12 or 13 January 2026 is the start date.
3. Mr O'Brien put in issue Council's failure to create an HR profile for him that correctly reflected the position he was offered and accepted. Related to this was automatic generation of an email signature block for Mr O'Brien which was incorrect.
4. I accept the evidence of the Council, through Mr Venter, that when Mr O'Brien commenced, his HR profile was that of a person who Mr O'Brien replaced, but whose position was not identical to Mr O'Brien. The previous employee had a different title reflecting his somewhat different role. I also accept the evidence of Mr Venter that while attempts were made to correct this HR issue, and this was explained to Mr O'Brien, the correction had not been made before Mr O'Brien was dismissed.
5. Stripped of Mr O'Brien's complex and emotive language, this explanation accords with the evidence of Mr O'Brien. Mr O'Brien was employed in the position of Property Officer - Land Dealings, but Council appeared unable or unwilling to correct certain HR and IT issues in Council's systems during Mr O'Brien's tenure.
6. This issue has no bearing on Mr O'Brien serving a period of probation.

The period of probation was determined in advance, and it was not more than 3 months

1. The offer of 19 December 2025 plainly sets out a probationary period of three months. This was agreed to by Mr O'Brien when he accepted the Council's offer.
2. There is no question that the period of probation was determined in advance and was not more than 3 months.
3. The Commission lacks jurisdiction to hear and determine Mr O'Brien's application.

1. Mr O'Brien filed a witness statement of 10 pages in respect of the jurisdiction of the Commission. The witness statement was clearly part witness statement, part outline of submissions.
2. Of its 10 pages, only one paragraph of the document is related to the question of probation. That paragraph does not address the requirements of regulation 6(1)(c). It does seek to have the " ... contract be declared void and this experience ... removed from [Mr O'Brien's] record, as if this experience never happened and [he] be awarded damages for [his] experience."
3. Without jurisdiction to consider the application there is clearly no basis for the Commission to make such orders.
4. Mr O'Brien's document also raised the question of the fairness of his contract, and the application of s 106 of the IR Act to that contract. As constituted, the Commission cannot determine that question. Only the Commission in Court Session may determine such a question: s 153(1)(c).
5. The rest of his document set out matters including:

(1) Mr O'Brien's qualifications and work experience;

(2) his understanding that I will not have read the whole of his document. I assured Mr O'Brien I had read every word;

(3) his experience as an employee of the Council, including his many concerns about that experience;

(4) the issues, set out above beginning at [16], concerning his title;

(5) his output as an employee of the Council; and

(6) an incident at a Council public pool in his private capacity, and about which he alleged mishandling by the Council.

1. Unfortunately for Mr O'Brien none of these are relevant to the jurisdictional question of whether he was an employee serving a period of probation consistent with reg 6(1)(c).
2. A further document of some 35 pages, being a comprehensive recitation of events and surrounding circumstances, was ultimately admitted. I have read this over the morning tea and luncheon adjournment. The contents of this longer document changes nothing.
3. The vast majority of the document has similar irrelevant matters to those set out above for Mr O'Brien's witness statement, albeit at greater length.
4. The rest sets out Mr O'Brien's alternative legal arguments as to:

(1) ILO Conventions;

(2) objects of the IR Act,

(3) breach of trust and contract,

(4) Mr O'Brien being a person with a disability including a requirement for reasonable adjustments, all apparently related to working from home;

(5) the New South Wales Local Government Award,

(6) good faith bargaining; and

(7) alleged offences under the Model Code of Conduct for Local Government in NSW.

1. As I explained to Mr O'Brien during the hearing, the objects of the IR Act and the ILO Convention can only be relevant to understanding a specific power or jurisdiction given to the Commission. They cannot found a head of jurisdiction.
2. The remainder of these issues, being breach of trust or contract, being a person with a disability, the New South Wales Local Government Award, good faith bargaining and offences under the Model Code of Conduct may have been relevant if the Commission had jurisdiction, and the substance of his claim was to be determined by the Commission.
3. Mr O'Brien then set out allegations of bullying and victimisation. Neither of these were before me as a cause of action and so, again, can only be relevant to the substance of Mr O'Brien's claim.
4. Finally, Mr O'Brien's larger document set out matters concerning adverse action pursuant to the Fair Work Act 2009 (Cth). This Commission has no jurisdiction on such matters. It is a matter for the Fair Work Commission.
5. Separately from his written submissions, Mr O'Brien orally raised:

(1) an alleged promissory estoppel. There is no separate cause of action here. It may have been raised as harsh, unreasonable or unjust if the jurisdiction had been established.

(2) whether there was a probation because no steps/tasks were set for him to pass in order to pass his probation. Such a requirement is not part of the exception in reg 6(1)(c).

(1) the model litigant policy; and

(2) the Model Code of Conduct for Local Government in NSW and the Northern Beach Council Code of Conduct.

1. He submitted that from the totality of these that the Northern Beaches Council should be required to be a model employer. There are two things to say about this:

(1) a model litigant is not the same as a model employer, and I am far from persuaded that the Northern Beach Council has engaged in any breach of its obligations as a model litigant, and

(2) the issues of alleged breaches of either or indeed any of the codes says nothing about the probationary exemptions to Part 6 of Chapter 2. Any relevance can only arise in a determination of Mr O'Brien's substantive claim. That substance could only be addressed by me if I had jurisdiction.